CourtListener.com: All Opinions (High Volume)https://www.courtlistener.com/2024-03-28T00:00:00-07:00Free Law Projectfeeds@courtlistener.comCreated for the public domain by Free Law ProjectLaura Ruccolo v. Ardsley West Community Association, Inc.2024-03-28T00:00:00-07:00New Jersey Superior Court Appellate Divisionhttps://www.courtlistener.com/opinion/9488741/laura-ruccolo-v-ardsley-west-community-association-inc/
<p>NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1563-21 LAURA RUCCOLO, Plaintiff-Appellant, v. ARDSLEY WEST COMMUNITY ASSOCIATION, INC., BARBARA CIANCI-MURRAY, LES ZEIFMAN, MICHAEL GUERRA, and BEVERLY MILLER, Defendants-Respondents. Submitted January 18, 2024 - Decided March 28, 2024 Before Judges Currier and Vanek. On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-0741-19. Capehart & Scatchard, PA, attorneys for appellant (Alan Paul Fox, on the briefs). Cutolo Barros, LLC, attorneys for respondents (Karyn Ann Branco and Jennifer M. Kurtz, on the brief). PER CURIAM Plaintiff Laura Ruccolo is the owner of a townhouse in the Ardsley West townhouse community. In this lawsuit against defendant Ardsley West Community Association, Inc. (the HOA), and several individual members of the HOA's elected board of directors (the Board), plaintiff alleged the HOA and its Board members violated the community's Declaration of Restrictive Covenants, Conditions, and Restrictions (the Declaration), its own by-laws, and a variety of laws and regulations related to the operation of a common interest community. All but one count of the complaint was dismissed on summary judgment. The remaining count was dismissed after a bench trial. Plaintiff appeals from the orders granting defendants summary judgment and denying reconsideration, and the order dismissing the remaining count with prejudice after the bench trial. We affirm. I. Plaintiff has lived in Ardsley West since 1996. When she purchased the townhouse, plaintiff was provided with the HOA by-laws and the Declaration. Plaintiff sued the HOA for the first time in 2017. The matter was resolved by the parties' entry of a consent order. A-1563-21 2 In 2018, plaintiff filed the complaint that is the subject of this appeal. In her second amended complaint, plaintiff alleged that defendants retaliated against her and violated her rights by: taking actions with an improperly constituted Board (count one); misrepresenting that the Planned Real Estate Development Full Disclosure Act (PREDFDA), N.J.S.A. 45:22A-21 to -56, applied to the HOA and improperly seeking to amend the by-laws (count two); violating N.J.S.A. 15A:5-24 by failing to produce requested records (count three); violating the HOA by-laws with respect to capital expenditures (count four); corporate waste (count five); violating the by-laws and founding declarations of the community by adopting a "Homeowner's Manual" without proper notice (count six); creating vague rules and regulations regarding insurance, leases, service animals, and satellite dishes (count seven); breaching its fiduciary duty (count eight); breaching the HOA by-laws (count nine); and violating PREDFDA by failing to provide her notice or an opportunity to engage in alternative dispute resolution before filing a counterclaim (count ten). The allegations generally arose from plaintiff's challenges to Board actions. She also contested the constitution of the Board and its ratification …</p><br>
<a href="/opinion/9488741/laura-ruccolo-v-ardsley-west-community-association-inc/">Original document</a>
Smallwood v. United States2024-03-28T00:00:00-07:00District of Columbia Court of Appealshttps://www.courtlistener.com/opinion/9488721/smallwood-v-united-states/
<p>Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press. DISTRICT OF COLUMBIA COURT OF APPEALS No. 22-CF-0761 MICHAEL RICARDO SMALLWOOD, APPELLANT, v. UNITED STATES, APPELLEE. Appeal from the Superior Court of the District of Columbia (2019-CF2-016100) (Hon. Jason Park, Trial Judge) (Submitted October 18, 2023 Decided March 28, 2024) Michael Madden was on the brief for appellant. Matthew M. Graves, United States Attorney, and Chimnomnso N. Kalu, Chrisellen R. Kolb, Lauren Galloway, and Ryan Sellinger, Assistant United States Attorneys, were on the brief, for appellee. Before MCLEESE, ∗ HOWARD, and SHANKER, Associate Judges. HOWARD, Associate Judge: Appellant Michael Ricardo Smallwood was convicted of gun possession and related charges following a domestic dispute at the ∗ Associate Judge AliKhan was originally assigned to this case. Following her appointment to the U.S. District Court for the District of Columbia, effective December 12, 2023, Judge McLeese has been assigned to take her place on the panel. 2 home he shared with the mother of his child and stepchildren. On appeal, Mr. Smallwood challenges the trial judge’s admission of the testimony of the mother of his child, his child, and his stepchildren, who each testified about Mr. Smallwood’s prior possession of a gun. Upon review of the record, we hold that the trial judge properly admitted the testimony of the mother of the children as “direct and substantial proof” of the crime charged. As for the children’s testimony, we conclude that any error in the admission of their testimony was harmless. Accordingly, for the reasons that follow, we affirm. I. Factual Background A. The Arrest In August 2019, approximately three to four months before the incident, Mr. Smallwood moved into an apartment with Ms. Dana Lockridge, the mother of one of Mr. Smallwood’s children, E.L., and his two stepchildren, D.L. and A.L. During the early morning hours of December 21, 2019, the Metropolitan Police Department (“MPD”) responded to a domestic dispute at the shared residence of Mr. Smallwood and Ms. Lockridge. What began as an argument concerning an unpaid insurance bill quickly escalated into violence, leading to Ms. Lockridge calling 911. According to the testimony of Ms. Lockridge and the three children, Mr. Smallwood choked Ms. Lockridge before preventing her and the children from leaving the apartment. 3 When MPD arrived, another argument erupted between Mr. Smallwood and Ms. Lockridge. Ms. Lockridge offered to “show [officers] what else is in here,” and escorted an officer to their shared bedroom. In the bedroom, Ms. Lockridge opened a dresser drawer revealing a pistol, a standard magazine, an extended magazine, and ammunition. Ms. Lockridge told officers that the gun, accompanying magazines, and ammunition belonged to Mr. Smallwood. The dresser drawer where the gun was recovered was utilized primarily by Mr. Smallwood and contained his clothing and personal items. As a result, Mr. Smallwood …</p><br>
<a href="/opinion/9488721/smallwood-v-united-states/">Original document</a>
Raymond G. Morison, Jr. v. the Willingboro Board of Education2024-03-28T00:00:00-07:00New Jersey Superior Court Appellate Divisionhttps://www.courtlistener.com/opinion/9488733/raymond-g-morison-jr-v-the-willingboro-board-of-education/
<p>NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1280-22 RAYMOND G. MORISON, JR., Plaintiff-Appellant, APPROVED FOR PUBLICATION v. March 28, 2024 THE WILLINGBORO BOARD APPELLATE DIVISION OF EDUCATION and NEW JERSEY DEPARTMENT OF EDUCATION, STATE BOARD OF EXAMINERS, Defendants-Respondents. ____________________________ Argued March 4, 2024 — Decided March 28, 2024 Before Judges Sabatino, Mawla, and Chase. On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-0092-22. Eric J. Riso argued the cause for appellant (Zeller & Wieliczko, LLP, attorneys; Eric J. Riso, on the briefs). Lester Everett Taylor argued the cause for respondent The Willingboro Board of Education (Florio Perrucci Steinhardt Cappelli Tipton & Taylor LLC, attorneys; Wade Lawrence Dickey, on the brief). Sadia Ahsanuddin, Deputy Attorney General, argued the cause for respondent New Jersey Department of Education, State Board of Examiners (Matthew J. Platkin, Attorney General, attorney; Janet Greenberg Cohen, Assistant Attorney General, of counsel; Sadia Ahsanuddin, on the brief). The opinion of the court was delivered by SABATINO, P.J.A.D. In 2012, the Legislature overhauled the procedures through which tenured public school teachers and administrators in New Jersey, who are charged with improper conduct or other just cause, may be removed or disciplined at the behest of their school district employers. The legislation replaced the elaborate and time-consuming system of administrative hearings for such contested tenure cases with proceedings before an arbitrator. The arbitrator is drawn from a panel of permanent labor arbitrators maintained by the State Commissioner of Education. The arbitrator's decision is reviewable on narrow grounds in the trial court rather than, as before, through the Commissioner's review of an administrative law judge's findings. The novel issue presented to us is whether, under this revised system, a tenure arbitrator's determination of discipline through the procedures set forth in N.J.S.A. 18A:6-17.1 prevents the State Board of Examiners and Commissioner from imposing a more severe sanction of suspending or revoking the licensee's certificate to teach within this State, under the procedures set forth in N.J.S.A. 18A:6-38 to -39. A-1280-22 2 Appellant, a tenured teacher, was charged by the local board of education with unbecoming conduct. The school board sought to terminate his employment in the district. The contested matter was tried before an arbitrator. The arbitrator found appellant had engaged in unbecoming conduct, but she imposed a milder sanction of a one-year suspension. The arbitrator's decision was not challenged in court by either appellant or the school board. The Board of Examiners then pursued the revocation of appellant's license based on his same improper conduct. Appellant contends the Board of Examiners and the Commissioner— even though they were not parties to the tenure arbitration—have no authority to pursue the revocation of his license because the arbitrator only suspended his employment for one year. Among other things, appellant invokes a doctrine of "industrial double jeopardy" to support his preclusion argument. He also contends the revocation proceedings violate his constitutional and civil rights. The preclusion …</p><br>
<a href="/opinion/9488733/raymond-g-morison-jr-v-the-willingboro-board-of-education/">Original document</a>
Sakinah Rice, Etc. v. Gold Medal Environmental of Nj, Inc.2024-03-28T00:00:00-07:00New Jersey Superior Court Appellate Divisionhttps://www.courtlistener.com/opinion/9488737/sakinah-rice-etc-v-gold-medal-environmental-of-nj-inc/
<p>NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0768-22 SAKINAH RICE, individually, and as administrator ad prosequendum of the Estate of CHRISTOPHER RICE, Plaintiff-Appellant, v. GOLD MEDAL ENVIRONMENTAL OF NJ, INC., GOLD MEDAL SERVICES, LLC, GOLD MEDAL GROUP, LLC, GOLD MEDAL DISPOSAL, INC., GOLD MEDAL, LLC, GOLD MEDAL ENVIRONMENTAL OF PA, INC., and MACK TRUCKS, INC., Defendants, and MCNEILUS TRUCK AND MANUFACTURING, INC., Defendant-Respondent. ______________________________ Argued November 9, 2023 – Decided March 28, 2024 Before Judges Accurso, Gummer and Walcott- Henderson. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1906-19. Brett McPherson Furber argued the cause for appellant (Messa & Associates, PC, attorneys; Brett McPherson Furber, on the briefs). Dennis P. Ziemba argued the cause for respondent (Dilworth Paxson, LLP, attorneys; Dennis P. Ziemba and Robert P. Zoller, on the brief). PER CURIAM In this wrongful-death and survival case, plaintiff Sakinah Rice, administratrix ad prosequendum for the estate of her deceased husband, Christopher Rice, appeals a December 17, 2021 order granting defendant McNeilus Truck and Manufacturing Inc. summary judgment as to all claims on the basis that plaintiff's liability expert's report constitutes a net opinion. Plaintiff argues the court abused its discretion when it ruled the expert had offered a net opinion and granted defendant's motion. Plaintiff also argues that the court erred in denying the motion for reconsideration in a November 9, 2022 order. Because we discern no error, we affirm. A-0768-22 2 The relevant facts are undisputed. Gold Medal Services employed Christopher Rice as a trash collector. On June 6, 2017, Rice was standing on the passenger-side rear platform of a refuse truck designed by defendant when the rear of the truck collided with a telephone pole located on the side of the roadway, pinning Rice. Rice suffered injuries and died at the scene. At the time of Rice's death, Marcus Stotts, a fellow employee, was driving the refuse truck. Stotts was familiar with the route they were scheduled to work on the day of Rice's death. He testified he had met Rice for the first time on the morning of the accident, and Rice was scheduled to be his helper. According to Stotts, as they began their route that morning, Rice was standing on the rear side step, only getting off to pick up trash and throw it into the back of the truck. He testified he had told Rice to get off the rear side step and to "get in the truck" at least four times that day "for safety reasons" because of the distance between the trash pickup locations. Gold Medal's Driver & Helper Safety Rules & Procedures manual directs that "[w]hen the truck is traveling …</p><br>
<a href="/opinion/9488737/sakinah-rice-etc-v-gold-medal-environmental-of-nj-inc/">Original document</a>
Philip Dattolo v. Emc Squared, LLC2024-03-28T00:00:00-07:00New Jersey Superior Court Appellate Divisionhttps://www.courtlistener.com/opinion/9488738/philip-dattolo-v-emc-squared-llc/
<p>NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1450-22 PHILIP DATTOLO, Plaintiff-Appellant, v. EMC SQUARED, LLC and EDWARD T. MORGAN, Defendants-Respondents. __________________________ Submitted January 30, 2024 – Decided March 28, 2024 Before Judges Mayer and Paganelli. On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-0369-20. Joseph J. Fritzen, attorney for appellant. Oller and Breslin, LLC, attorneys for respondents (John Michael Breslin, on the brief). PER CURIAM Plaintiff Philip Dattolo appeals from a December 9, 2022 final judgment entered solely against defendant EMC Squared LLC, awarding him $29,603.95 in damages for breach of contract and $15,000 in attorney's fees. We affirm the judgment as to damages, but vacate and remand the awarded attorney's fees. The facts are gleaned from the trial record. On October 23, 2018, Dattolo and defendant Edward Morgan, on behalf of EMC (collectively defendants), executed a written contract. The contract called for EMC to construct a new single-family home in Boonton, New Jersey. Morgan was the sole member of EMC and performed the work under the contract. In March 2019, EMC presented Dattolo with a list of extras and sought additional payment. Dattolo accepted some of the items and agreed to pay a lesser amount. Toward the end of the job, EMC created a change order for additional work. The parties never signed the change order. In January 2020, Morgan advised Dattolo that EMC was unable to continue the work. Further, Morgan stated the home passed final inspections. EMC provided Dattolo a final invoice with credits for unfinished items and items paid by Dattolo. Dattolo responded that he was unwilling to pay "one additional cent." Dattolo asserted there were numerous issues, and it was going to cost him thousands of dollars to correct EMC's work. A-1450-22 2 On February 14, 2020, Dattolo filed a five-count complaint against EMC and Morgan. Dattolo alleged: (1) breach of contract; (2) unjust enrichment; (3) breach of the implied covenant of good faith and fair dealing; (4) common law fraud; and (5) violation of the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -228, for failure to comply with Home Improvement Practices (HIP) regulations, N.J.A.C. 13:45A-16.1 to -16.2.1 Defendants filed an answer, denying all allegations and asserting various defenses and a counterclaim. In the counterclaim, defendants alleged Dattolo "breached the contract by failing to pay [what wa]s due and owing." Dattolo filed an answer to the counterclaim with affirmative defenses. The judge held a two-day bench trial on December 5 and 6, 2022. As relevant here, and in part, Dattolo urged EMC violated the CFA/HIP because EMC failed to provide him a change order that should have been signed by all parties. As a …</p><br>
<a href="/opinion/9488738/philip-dattolo-v-emc-squared-llc/">Original document</a>
FAYE CRUMP v. AMERICAN MULTI-CINEMA, INC. D/B/A AMC2024-03-28T00:00:00-07:00District Court of Appeal of Floridahttps://www.courtlistener.com/opinion/9488727/faye-crump-v-american-multi-cinema-inc-dba-amc/
<p>FIFTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ Case No. 5D22-2671 LT Case No. 2019-CA-002883-11J-L _____________________________ FAYE CRUMP, Appellant, v. AMERICAN MULTI-CINEMA, INC. d/b/a AMC, Appellee. _____________________________ Nonfinal appeal from the Circuit Court for Seminole County. Jessica J. Recksiedler, Judge. Josef Timlichman, of Josef Timlichman Law, PLLC, Aventura, for Appellant. R. David McLaughlin, and Michael W. LeRoy, of Fulmer LeRoy & Albee, PLLC, Orlando, for Appellee. March 28, 2024 SOUD, J. Appellant Faye Crump appeals the trial court’s denial of her motion for leave to assert a claim for punitive damages in her underlying personal injury action against American Multi-Cinema d/b/a AMC. We have jurisdiction. See Art. V, § 4(b)(1), Fla. Const.; Fla. R. App. P. 9.130(a)(3)(G). We affirm, concluding the trial court properly denied the motion because there is no reasonable evidentiary basis for the recovery of such damages. I. Crump and her friend went to the movies at the AMC theater in Altamonte Springs, Florida on February 24, 2018. While they were inside Theater 11, which was “packed” because of a popular movie having recently opened, an individual in the parking lot fired a gun at a car passing by. As a result, approximately 300 to 400 people fled the parking lot area in front of the theater building, many of whom entered the theater lobby. Relatedly, Crump heard someone in Theater 11 loudly say, “Get out.” She then described “a herd of people” from the other side of the theater running and screaming. Crump testified at her deposition that she could not remember any other specific words because she “went into shock and didn’t know what was happening.” Crump did not see anyone she could identify as an AMC employee inside the theater at that time. As people began to run out of the theater, Crump fell and was stepped on by others fleeing the theater. She testified she became dazed and blacked out. According to Crump’s friend, Gary Capers, approximately ten minutes after the movie started, a female AMC employee “busted in the door” of Theater 11 loudly yelling, “Everybody has to leave. Get out. Get out.” Capers then stood up and told Crump they needed to leave. Before Crump could react, the crowd pushed Capers out the door. Capers lost sight of Crump and did not see her again until Crump exited the theater about thirty minutes later. Capers did not hear the female employee say anything about a shooting or a shooter. Initially, when the gun shots were fired, AMC General Manager Thomas Stauffenberg heard a manager “scream[]” on the handheld radio carried by employees “gun shots fired.” When Stauffenberg asked him to repeat the statement, the manager said, “Gun shots fired. Gun shots fired. Active shooter.” All radios carried by employees had earpieces that were connected to the handheld radios so that patrons at the theater could not hear the radio transmission. 2 Elizabeth Gerson was one of two female AMC employees 1 who entered Theater 11 where Crump was seated. While …</p><br>
<a href="/opinion/9488727/faye-crump-v-american-multi-cinema-inc-dba-amc/">Original document</a>
KENDELL AMOS WILMORE v. STATE OF FLORIDA2024-03-28T00:00:00-07:00District Court of Appeal of Floridahttps://www.courtlistener.com/opinion/9488726/kendell-amos-wilmore-v-state-of-florida/
<p>FIFTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ Case No. 5D23-0400 LT Case No. 16-2016-CF-002779-AXXX _____________________________ KENDELL AMOS WILMORE, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Duval County. Adrian G. Soud, Judge. William Mallory Kent, of Kent & McFarland, Jacksonville, for Appellant. Ashley Moody, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee. March 28, 2024 PER CURIAM. Kendell Amos Wilmore appeals the trial court’s order revoking his sex offender probation after finding him in violation of Special Condition 18 and Standard Condition 19. On appeal, Wilmore argues, inter alia, that the State failed to present competent, substantial evidence of either violation. We affirm the trial court’s finding that Appellant violated Special Condition 18, mandating electronic monitoring, without further discussion. However, we agree that there is no competent, substantial evidence in our record to support the trial court’s finding that Wilmore violated Standard Condition 19, which prohibits contact with a minor. As such, the trial court’s finding that Wilmore violated Condition 19 is in error. See Stringfield v. State, 254 So. 3d 1127, 1127–28 (Fla. 5th DCA 2018) (“A lower court’s finding of a willful and substantial violation of probation must be supported by competent, substantial evidence.” (citation omitted)). Based on our record, including the trial court’s focus on the violation of Standard Condition 19, we cannot determine whether the trial court would have revoked probation and imposed the same sentence based solely on the violation of Special Condition 18. We therefore reverse the order and remand for reconsideration. See Niemi v. State, 284 So. 3d 1143, 1145–46 (Fla. 5th DCA 2019). We otherwise affirm. AFFIRMED in part, REVERSED in part, and REMANDED. WALLIS, LAMBERT, and EISNAUGLE, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ 2 23-0400 District Court of Appeal of Florida fladistctapp Fla. Dist. Ct. App. KENDELL AMOS WILMORE v. STATE OF FLORIDA 28 March 2024 Published 9952bfcf30d43afc316e6f2490a326de0d224130</p><br>
<a href="/opinion/9488726/kendell-amos-wilmore-v-state-of-florida/">Original document</a>
J.T. v. A.S.A.2024-03-28T00:00:00-07:00New Jersey Superior Court Appellate Divisionhttps://www.courtlistener.com/opinion/9488742/jt-v-asa/
<p>RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1860-22 A-2152-22 J.T.,1 Plaintiff-Appellant, v. A.S.A., Defendant-Respondent. ___________________________ A.S.A., Defendant-Appellant, v. J.T., Plaintiff-Respondent. ____________________________ Submitted March 5, 2024 – Decided March 28, 2024 Before Judges Mayer and Enright. 1 We refer to the parties by initials and pseudonyms to protect their privacy and preserve the confidentiality of these proceedings. R. 1:38-3(d)(9) and (10). On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket Nos. FV-12-1697-23 and FV-12-1730-23. Einhorn, Barbarito, Frost & Botwinick, PC, attorneys for J.T. (Bonnie C. Frost, Matheu D. Nunn, and Jessie M. Mills, on the briefs). Jardim, Meisner & Susser, PC, attorneys for A.S.A. (Jessica Ragno Sprague, on the brief). PER CURIAM In these consolidated appeals2 involving the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, J.T. (Jane) appeals from the dismissal of her domestic violence complaint against A.S.A. (Art) and Art appeals from the dismissal of his domestic violence cross-complaint against Jane. Under the idiosyncratic facts presented, we affirm the orders dismissing the parties' temporary restraining orders (TROs) and domestic violence complaints. We recite the facts from the domestic violence trial. Jane and Art married in December 2017. The parties have one child, D.A. (Dan), born in 2019. The parties filed for divorce in 2020. One of the hotly contested issues in the divorce 2 We consolidated the appeals in a May 8, 2023 order. A-1860-22 2 action involved custody of Dan. 3 The Family Part judge handling the divorce action issued an order granting Art parenting time "in his hotel suite . . . when [Art] is in New Jersey,"4 with parenting time exchanges to occur at Art's hotel in Somerset. At the time of the domestic violence trial, there had been approximately fifty days of trial testimony in the divorce action.5 On January 17, 2023, Jane filed for a TRO against Art alleging the predicate act of harassment. In her domestic violence complaint, Jane stated she arrived at Art's hotel with her father (Grandfather) on January 17 for the scheduled parenting time exchange. According to Jane, she "briefly put [Dan] down[,] who then walked to . . . [G]randfather to be held." Jane claimed Art "became angry and . . . began shoving" her and Grandfather in an "attempt[] to take [Dan]." Jane explained she "attempted to grab [Dan] from [Grandfather] and was again shoved by [Art]." In the portion of the TRO application stating 3 After the parties filed their appellate briefs, but before the matter was calendared, the judge handling the divorce action entered a final judgment of divorce (JOD). In a July 27, 2023 order, we denied Jane's motion to supplement …</p><br>
<a href="/opinion/9488742/jt-v-asa/">Original document</a>
Biomedical Device Consultants & Laboratories v. Vivitro Labs, Inc.2024-03-28T00:00:00-07:00Court of Appeals for the Federal Circuithttps://www.courtlistener.com/opinion/9488720/biomedical-device-consultants-laboratories-v-vivitro-labs-inc/
<p>Case: 23-2393 Document: 46 Page: 1 Filed: 03/28/2024 NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ BIOMEDICAL DEVICE CONSULTANTS & LABORATORIES OF COLORADO, LLC, Plaintiff-Appellant v. VIVITRO LABS, INC., Defendant-Appellee ______________________ 2023-2393 ______________________ Appeal from the United States District Court for the Central District of California in No. 2:23-cv-04291-HDV-E, Judge Hernan D. Vera. ______________________ Decided: March 28, 2024 ______________________ GREGORY S. TAMKIN, Dorsey & Whitney LLP, Denver, CO, argued for plaintiff-appellant. Also represented by SHANNON L. BJORKLUND, Minneapolis, MN. WARREN JAMES THOMAS, Meunier Carlin & Curfman LLC, Atlanta, GA, argued for defendant-appellee. Also represented by JOHN W. HARBIN. ______________________ Case: 23-2393 Document: 46 Page: 2 Filed: 03/28/2024 2 BIOMEDICAL DEVICE CONSULTANTS & LABORATORIES v. VIVITRO LABS, INC. Before LOURIE, DYK, and STARK, Circuit Judges. LOURIE, Circuit Judge. Biomedical Device Consultants & Laboratories of Col- orado, LLC (“BDC”) appeals from the decision of the United States District Court for the Central District of California denying its motion for a preliminary injunction. See Bio- medical Device Consultants & Lab’ys of Colo., LLC v. Vivitro Labs, Inc., No. 2:23-CV-04291-HDV, 2023 WL 6783296 (C.D. Cal. Aug. 29, 2023) (“Decision”). We affirm. BACKGROUND BDC and ViVitro Labs, Inc. (“ViVitro”) manufacture and sell competing heart valve durability testing devices. Decision at *1. BDC sued ViVitro in district court accusing ViVitro’s “AD[C] Heart Valve Durability Tester” of infring- ing U.S. Patent 9,237,935 (“the ’935 patent”) and moved for a preliminary injunction. Id. The ’935 patent is directed toward accelerated rate fatigue testing devices for pros- thetic valves. ’935 patent, abstract, col. 17 ll. 29–50. BDC asserted eight claims of the ’935 patent with claim 1 as the only independent claim. Relevant to this appeal is the “ex- cess volume area” limitation of claim 1. Claim 1 recites, in part: 1. A device for accelerated cyclic testing of a valved prosthetic device comprising . . . an excess volume area capable of operating at the accelerated pulsed rate, wherein the excess volume area is in fluid communica- tion with the fluid return chamber provid- ing a volume for storing a volume of a test system fluid when the test system fluid is under compression. Id. col. 17 ll. 29–50. All three properties of an excess volume area described in that limitation are in dispute: (1) that it is “capable of Case: 23-2393 Document: 46 Page: 3 Filed: 03/28/2024 BIOMEDICAL DEVICE CONSULTANTS & LABORATORIES v. 3 VIVITRO LABS, INC. operating at the accelerated pulsed rate,” (2) that it is “in fluid communication with the fluid return chamber,” and (3) that it “provid[es] a volume for storing a volume of a test system fluid when the test system fluid is under compres- sion.” Id. The specification describes the excess volume area in terms of its relationship to a compliance 1 chamber. The compliance chambers 135 provide excess volume area for fluid to move into when the piston 114 per- forms a compression stroke. As the pressure of the gas in the compliance chamber …</p><br>
<a href="/opinion/9488720/biomedical-device-consultants-laboratories-v-vivitro-labs-inc/">Original document</a>
DARYL KEITH BURNS v. STATE OF FLORIDA2024-03-28T00:00:00-07:00District Court of Appeal of Floridahttps://www.courtlistener.com/opinion/9488728/daryl-keith-burns-v-state-of-florida/
<p>FIFTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ Case No. 5D23-2972 LT Case No. 2017-CF-004507-A _____________________________ DARYL KEITH BURNS, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Marion County. Peter M. Brigham, Judge. Daryl Keith Burns, Bushnell, pro se. Ashley Moody, Attorney General, Tallahassee, and Whitney Brown Hartless, Assistant Attorney General, Daytona Beach, for Appellee. March 28, 2024 PER CURIAM. Daryl Keith Burns appeals the trial court’s denial of his petition for writ of habeas corpus in which he challenged his conviction and sentence. The trial court denied Burns’ petition stating that a petition for writ of habeas corpus could not be used as a substitute for raising issues on direct appeal or in a motion for postconviction relief. While the trial court’s reasoning and finding that Burns was not entitled to relief were correct, it should have dismissed Burns’ petition rather than deny it. See Baker v. State, 878 So. 2d 1236, 1245−46 (Fla. 2004) (finding habeas petitions collaterally attacking an underlying conviction or sentence should be dismissed as unauthorized). Because the trial court should have dismissed Burns’ claim, we reverse and remand with instruction to dismiss Burns’ petition for writ of habeas corpus as unauthorized. REVERSED and REMANDED with instruction. MAKAR, SOUD, and KILBANE, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ 2 23-2972 District Court of Appeal of Florida fladistctapp Fla. Dist. Ct. App. DARYL KEITH BURNS v. STATE OF FLORIDA 28 March 2024 Published e17f38be462d6e0896c34da2ad02d7e27877b6de</p><br>
<a href="/opinion/9488728/daryl-keith-burns-v-state-of-florida/">Original document</a>
In re Buie, III2024-03-28T00:00:00-07:00District of Columbia Court of Appealshttps://www.courtlistener.com/opinion/9488722/in-re-buie-iii/
<p>Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press. DISTRICT OF COLUMBIA COURT OF APPEALS No. 24-BG-0074 In re WILLIAM ROOSEVELT BUIE, III, A Member of the Bar of the District of Columbia Court of Appeals Bar Registration No. 471135 DDN: 2021-D189 BEFORE: Howard and Shanker, Associate Judges, and Thompson, Senior Judge. ORDER (FILED— March 28, 2024) On consideration of the certified order from the state of Maryland suspending respondent from the practice of law by consent for 180 days, fully stayed in favor of probation for one year with terms; this court’s February 13, 2024, order directing respondent to show cause why reciprocal discipline should not be imposed; respondent’s response consenting to reciprocal discipline; and the statement of Disciplinary Counsel, it is ORDERED that William Roosevelt Buie, III, is hereby suspended from the practice of law for 180 days, fully stayed in favor of one year of probation conditioned on respondent’s compliance with the remaining probationary terms in Maryland. See In re Sibley, 990 A.2d 483, 487-88 (D.C. 2010) (explaining that there is a rebuttable presumption in favor of imposition of identical discipline and exceptions to this presumption should be rare). PER CURIAM 24-BG-0074 District of Columbia Court of Appeals dc D.C. In re Buie, III 28 March 2024 Published 4ec5d92088a51ad893f1d4b3e52a7545f06395b1</p><br>
<a href="/opinion/9488722/in-re-buie-iii/">Original document</a>
J. Pierson v. Consol Pennsylvania Coal Co., LLC (WCAB)2024-03-28T00:00:00-07:00Commonwealth Court of Pennsylvaniahttps://www.courtlistener.com/opinion/9488745/j-pierson-v-consol-pennsylvania-coal-co-llc-wcab/
<p>IN THE COMMONWEALTH COURT OF PENNSYLVANIA Johnny L. Pierson, : Petitioner : : v. : No. 396 C.D. 2023 : Consol Pennsylvania Coal : Submitted: March 8, 2024 Company, LLC (Workers’ : Compensation Appeal Board), : Respondent : BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE LORI A. DUMAS, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH FILED: March 28, 2024 Johnny L. Pierson (Claimant) petitions for review of the Workers’ Compensation (WC) Appeal Board’s (Board) March 30, 2023 order affirming the Workers’ Compensation Judge’s (WCJ) September 19, 2022 decision granting Consol Pennsylvania Coal Company, LLC’s (Employer) Petition to Terminate Claimant’s WC benefits (2021 Termination Petition). On appeal, Claimant contends that the evidence failed to demonstrate that he had fully recovered from his 2014 work injury since a prior adjudication. After review, we affirm. I. Background On August 13, 2014, Claimant sustained an injury to his shoulder when he tripped and fell while unloading a large piece of pipe from a mine car during the course and scope of his employment as a hoist man and operator at the Harvey Mine. Employer accepted the injury by a Notice of Compensation Payable which described Claimant’s injury as a labral tear of his right shoulder. On April 17, 2017, Employer filed a petition to terminate Claimant’s WC benefits, maintaining that Claimant had fully recovered from his injury as of March 30, 2017 (2017 Termination Petition). Claimant filed a review petition seeking to expand the description of his injury to include “lateral epicondylitis with tear of the ECRB [(extensor carpi radialis brevis)] tendon of the right elbow, right shoulder recurrent subacromial impingement along with biceps rotator cuff interval capsular tears, glenohumeral arthritis, partial labial tears, or symptomatic acromioclavicular arthritis.” (Reproduced Record (R.R.) at 20a.) Hearings were held before WCJ Charles Lawton (WCJ Lawton), at which Employer offered the September 6, 2017 deposition of orthopedic surgeon D. Kelly Agnew, M.D. (Dr. Agnew), who conducted an independent medical examination (IME) of Claimant on March 29, 2017. Claimant testified and offered the depositions of orthopedic surgeon Michael J. Rytel, M.D. and Mark W. Rodosky, M.D. (Dr. Rodosky), who specializes in the treatment of shoulder problems. By October 19, 2018 decision, WCJ Lawton denied the 2017 Termination Petition based on his determination that Employer failed to demonstrate Claimant had fully recovered from his work injury as of the March 2017 IME. (R.R. at 20a.) WCJ Lawton also denied Claimant’s review petition, finding that Claimant failed to establish that the description of his work injury should be amended to include additional diagnoses. Approximately four years after the first IME, Claimant underwent another IME performed by Dr. Agnew on April 22, 2021, following which Dr. Agnew opined that Claimant had fully recovered from his 2014 work accident and could return to work without restrictions. (R.R. at 22a.) Employer filed the 2021 Termination Petition on May 5, 2021, based upon Dr. Agnew’s conclusion. Claimant filed a review petition 2 on November 1, 2021, requesting that …</p><br>
<a href="/opinion/9488745/j-pierson-v-consol-pennsylvania-coal-co-llc-wcab/">Original document</a>
C.M. v. D.M.2024-03-28T00:00:00-07:00Massachusetts Appeals Courthttps://www.courtlistener.com/opinion/9488732/cm-v-dm/
<p>NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008). COMMONWEALTH OF MASSACHUSETTS APPEALS COURT 23-P-712 C.M. vs. D.M. MEMORANDUM AND ORDER PURSUANT TO RULE 23.0 C.M. (husband), the former spouse of D.M. (wife), appeals from two orders, dated July 12, 2022, issued by a judge of the Probate and Family Court, denying two motions filed by the husband in May 2022. The first was a motion for leave to file a late notice of appeal from the corrected judgment of divorce nisi entered on January 8, 2020. The second was a motion to enlarge the time to comply with the appellate procedural rules in connection with his appeal from a May 6, 2021 judgment dismissing his complaint for modification. We affirm. 1. Motion for leave to file a late notice of appeal. An appeal "shall be taken by filing a notice of appeal with the clerk of the lower court." Mass. R. A. P. 3 (a) (1), as appearing in 481 Mass. 1603 (2019). In a civil case involving private parties, the notice "shall be filed with the clerk of the lower court within 30 days of the date of the entry of the judgment, decree, appealable order, or adjudication appealed from." Mass. R. A. P. 4 (a) (1), as appearing in 481 Mass. 1606 (2019). Massachusetts Rule of Appellate Procedure 4 (c) provides, in relevant part, that "[u]pon a showing of excusable neglect, the lower court may extend the time for filing the notice of appeal . . . for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this rule." Because the husband waited more than two years to file a notice of appeal in connection with the divorce judgment, the judge did not have discretion under Rule 4 (c) to extend the time for filing a notice of appeal, as the husband requested. The judge was required to deny the motion for this reason alone. The husband also did not show "excusable neglect," which has been defined to encompass "circumstances that are unique or extraordinary, not [] any 'garden-variety oversight.'" Howard v. Boston Water & Sewer Comm'n, 96 Mass. App. Ct. 119, 123 (2019), quoting Sheav v. Alvord, 66 Mass. App. Ct. 910, 911 (2006). To the contrary, the husband admitted that he …</p><br>
<a href="/opinion/9488732/cm-v-dm/">Original document</a>
Beaudry v. Clay Lacy Aviation, Inc.2024-03-28T00:00:00-07:00Court of Appeals for the Second Circuithttps://www.courtlistener.com/opinion/9488718/beaudry-v-clay-lacy-aviation-inc/
<p>23-1201-cv Beaudry v. Clay Lacy Aviation, Inc. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 28th day of March, two thousand twenty-four. PRESENT: PIERRE N. LEVAL, SARAH A. L. MERRIAM, MARIA ARAÚJO KAHN, Circuit Judges. __________________________________________ BRIAN R. BEAUDRY, Plaintiff-Appellant, v. No. 23-1201-cv CLAY LACY AVIATION, INC., Defendant-Appellee. __________________________________________ FOR PLAINTIFF-APPELLANT: BRIAN R. BEAUDRY, Fremont, NH. FOR DEFENDANT-APPELLEE: CHRISTY E. JACHIMOWSKI, Lewis Brisbois Bisgaard & Smith LLP, Hartford, CT. Appeal from a judgment of the United States District Court for the District of Connecticut (Dooley, J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. In 2022, plaintiff-appellant Brian Beaudry, proceeding pro se, sued his employer, defendant-appellee Clay Lacy Aviation, Inc. (“CLA”), alleging that CLA was unlawfully withholding income taxes from his compensation. Beaudry sought injunctive relief and damages. CLA moved to dismiss. The district court granted CLA’s motion to dismiss, reasoning that Beaudry failed to state a claim because he could not sue his employer for complying with its obligation under federal law to withhold federal income taxes. On appeal, Beaudry contends primarily that the district court mischaracterized his complaint as seeking a tax refund, when his claim was that CLA, which he argues was the correct defendant, violated the law by continuing to withhold taxes on his compensation after he sent written notice instructing CLA to stop. He also contends that the district court should have granted him leave to amend his complaint before dismissal. 1 We assume the parties’ familiarity with the facts, procedural history, and issues on appeal, to 1 Because Beaudry does not pursue either his claim for injunctive relief or his criminal and constitutional claims on appeal, we consider those claims abandoned. See LoSacco v. City of Middletown, 71 F.3d 88, 92–93 (2d Cir. 1995) (Issues not addressed in an appellate brief are forfeited, even if appellant is proceeding pro se.). 2 which we refer only as necessary to explain our decision to affirm. “We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6),” accepting all factual allegations in the complaint as true and drawing all reasonable inferences in the plaintiff’s favor. Bruce Katz, M.D., P.C. v. Focus Forward, LLC, 22 F.4th 368, 370 …</p><br>
<a href="/opinion/9488718/beaudry-v-clay-lacy-aviation-inc/">Original document</a>
Michael Dunn v. New Jersey Department of Environmental Protection, Etc.2024-03-28T00:00:00-07:00New Jersey Superior Court Appellate Divisionhttps://www.courtlistener.com/opinion/9488739/michael-dunn-v-new-jersey-department-of-environmental-protection-etc/
<p>NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1392-22 MICHAEL DUNN, Petitioner-Appellant, v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, DIVISION OF LAND USE REGULATION, Respondent-Respondent. ___________________________ Argued March 11, 2024 - Decided March 28, 2024 Before Judges Sabatino, Marczyk and Chase. On appeal from the New Jersey Department of Environmental Protection. John Scott Abbott argued the cause for appellant. Bruce A. Velzy, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin, Attorney General, attorney; Janet Greenberg Cohen, Assistant Attorney General, of counsel; Bruce A. Velzy, on the brief). PER CURIAM This appeal concerns the Department of Environmental Protection's ("DEP's") denial of a homeowner's request to build a pier six feet westward of its previous location when he renovated his bayfront property. Specifically, petitioner Michael Dunn appeals the DEP's denial of his application for a Waterfront Development Individual Permit under N.J.A.C. 7:7-8.1. The DEP denied his application because the pier lost its so-called "legacy status" when it was moved from its previous location and, consequently, it required the new pier to be reduced in width to comply with current DEP limitations. We affirm. We derive the relevant facts, which are essentially undisputed, from the administrative record. Within one year of buying this bayfront residential property in Avalon in 2015, Dunn obtained a permit from the DEP allowing him to reconstruct the home, install an outdoor in-ground pool, and modernize his dock, pier, and boat ramp on the bay (together, the "water structures"). Dunn replaced the home and water structures and built a pool. After completing the construction, Dunn applied to the DEP for a permit modification to reflect the relocation of the water structures approximately six feet westward of their previous location. His application was prepared by an environmental consultant. A-1392-22 2 The DEP denied Dunn's application for a modification because the water structures' relocation ended their legacy status as structures that had been "constructed prior to September 1978" under N.J.A.C. 7:7-12.5(e). According to the DEP, the loss of legacy status required the new construction to meet current size limitations. Specifically, that meant that the width of any structure may not exceed eight feet. The widths of the preexisting and relocated piers were both 13.94 feet. Hence, Dunn had to reduce the water structures 5.94 feet in width to comply with the current maximum width of eight feet. The DEP assigned the matter to its Bureau of Coastal & Land Use Compliance and Enforcement "for further action for the existing waterfront structures." Dunn contested the denial of his permit application. Among other things, he asserted the relocation of the water structures was necessary "to provide a direct pathway from the dock to [his] home without needing to go …</p><br>
<a href="/opinion/9488739/michael-dunn-v-new-jersey-department-of-environmental-protection-etc/">Original document</a>
MARK D. NELSON v. BANK OF AMERICA & Another.2024-03-28T00:00:00-07:00Massachusetts Appeals Courthttps://www.courtlistener.com/opinion/9488731/mark-d-nelson-v-bank-of-america-another/
<p>NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008). COMMONWEALTH OF MASSACHUSETTS APPEALS COURT 23-P-814 MARK D. NELSON vs. BANK OF AMERICA & another.1 MEMORANDUM AND ORDER PURSUANT TO RULE 23.0 The plaintiff, Mark Nelson, appeals from a judgment of the Superior Court that entered pursuant to an order denying his motion for summary judgment and granting the motion for summary judgment of defendant town of Wilmington (town).2 We affirm. Background. The following facts are undisputed. The history of this dispute traces back to the 1990s, when Nelson's parents acquired certain parcels of land in the town with the intention of building several single-family homes. A definitive subdivision plan (plan) subjected the development to certain 1 Town of Wilmington. To the extent Nelson sued the "Administration of the Town of Wilmington" as an additional defendant, it is not a separate entity from the town. See Doe v. Cambridge Pub. Sch., 101 Mass. App. Ct. 482, 486-487 (2022). 2 Nelson's claims against the bank were resolved on motions by the bank to deposit funds pursuant to Mass. R. Civ. P. 67, 365 Mass. 835 (1974), and for separate and final judgment pursuant to Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974). conditions. The conditions stated that modifications to the plan needed to be approved by the planning board and that surety would be required prior to the sale or construction of any property. The plan also contained two special conditions: the provision of (1) turnarounds "at end of Polk and Poplar Streets in accordance with acceptable design standards of the Town Engineer" and (2) sidewalks "on the southerly side of Walnut Street and on one side of Poplar and Polk Streets" designed and constructed "in conformance with subdivision rules and regulations." In accordance with G. L. c. 41, § 81U, the developer executed and recorded a "FORM H-Covenant to Secure the Construction of Ways and the Installation of Municipal Services" for the approved plan. In 1997, 2001, and 2003, three properties were released for sale and construction in exchange for surety in the amount of $24,900, $24,835, and $33,593, respectively, as permitted by G. L. c. 41, § 81U. Where over the years the developer has complied with the public improvement requirements agreed on in the plan, the town has released escrow …</p><br>
<a href="/opinion/9488731/mark-d-nelson-v-bank-of-america-another/">Original document</a>
H. Roca, Jr. v. PBPP2024-03-28T00:00:00-07:00Commonwealth Court of Pennsylvaniahttps://www.courtlistener.com/opinion/9488746/h-roca-jr-v-pbpp/
<p>IN THE COMMONWEALTH COURT OF PENNSYLVANIA Hector Manuel Roca, Jr., : Petitioner : : v. : No. 149 C.D. 2023 : Submitted: March 8, 2024 Pennsylvania Parole Board, : Respondent : BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge HONORABLE ELLEN CEISLER, Judge HONORABLE MATTHEW S. WOLF, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE COHN JUBELIRER FILED: March 28, 2024 Hector Manuel Roca, Jr. (Roca) petitions for review of an Order of the Pennsylvania Parole Board (Board), mailed January 31, 2023, that affirmed the Board’s action mailed October 12, 2022, denying Roca credit for time spent at liberty on parole, also known as street time. Roca argues the Board failed to give him credit for all time served exclusively on its warrant and abused its discretion in denying him street time. For the following reasons, we affirm the Board’s Order. On December 15, 2017, Roca was sentenced to 6 months to 1 year, 11 months on a charge of manufacture/sale/deliver or possession with intent to manufacture or deliver a controlled substance in Luzerne County. (Sentence Status Summary, Supplemental Certified Record (Suppl. C.R.) at 1A.) On April 13, 2018, Roca was sentenced to a consecutive two to four years of incarceration after pleading guilty to firearm not to be carried without a license. (Id.) On April 3, 2019, the Board released Roca from boot camp with a maximum date of October 5, 2022. (Administrative Action, Certified Record (C.R.) at 4; Sentence Status Summary, C.R. at 1A.) On May 29, 2019, the Board declared Roca delinquent effective May 26, 2019. (Administrative Action, C.R. at 5.) By Board action recorded September 20, 2019, Roca was detained pending disposition of criminal charges and recommitted as a technical parole violator to serve six months for changing his residence without permission, in violation of the conditions of his parole. (Notice of Board Decision, C.R. at 6.) The Board calculated Roca owed 1,234 days’ backtime. (Order to Recommit, C.R. at 9.) He was given 53 days of delinquency for the period between May 27, 2019, to July 19, 2019, which was his custody for return date. (Id.) Adding the backtime owed to his custody for return date gave Roca a new maximum date of December 4, 2022. (Id.) He was automatically reparoled on January 19, 2020. (Order to Release on Parole/Reparole, C.R. at 11.) On June 11, 2021, the Board issued a Warrant to Commit and Detain Roca, after he was arrested by Department of Corrections’ Bureau of Internal Investigation for three counts each of conspiracy to commit contraband-controlled substance contraband to confined persons prohibited; conspiracy to manufacture, deliver, or possession with intent to manufacture or deliver; and criminal use of communication facility. (Criminal Arrest and Disposition Report, C.R. at 21; Criminal Complaint, C.R. at 37-45; Criminal Docket, C.R. at 49-62.) Bail was set at $20,000 monetary on July 13, 2021, but was not posted. (Id. at 50.) Roca was convicted of one count of conspiracy to manufacture, deliver, or possession with intent to manufacture or …</p><br>
<a href="/opinion/9488746/h-roca-jr-v-pbpp/">Original document</a>
State of New Jersey v. Alberto Scabone2024-03-28T00:00:00-07:00New Jersey Superior Court Appellate Divisionhttps://www.courtlistener.com/opinion/9488736/state-of-new-jersey-v-alberto-scabone/
<p>NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1460-22 STATE OF NEW JERSEY, Plaintiff-Respondent, v. ALBERTO SCABONE, a/k/a ALBERTO ESCABONE, and ALBERTO ROMERO, Defendant-Appellant. ___________________________ Submitted February 5, 2024 – Decided March 28, 2024 Before Judges Gilson and DeAlmeida. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 80-08-4225. Alberto Scabone, appellant pro se. Theodore N. Stephens II, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM In 1993, a jury convicted defendant Alberto Scabone of two counts of first-degree murder for killing his mother-in-law and sister-in-law, N.J.S.A. 2C:11-3, one count of second-degree passion/provocation manslaughter for killing his wife, N.J.S.A. 2C:11-4(b)(2), and one count of second-degree arson, N.J.S.A. 2C:17-1(a)(2). Defendant had committed the crimes in 1981 but then fled the country. Twelve years later, he was arrested in Central America and brought to the United States to stand trial. The evidence at trial established that defendant stabbed each of the victims multiple times and, thereafter, set the apartment on fire to cover up the crimes. Representing himself, defendant appeals from a December 7, 2022 order denying his motion to correct an alleged illegal sentence. Defendant's sentence was not illegal, and we affirm. In January 1994, defendant was sentenced to an aggregate prison term of eighty years, with forty years of parole ineligibility. On each of the murder convictions, he was sentenced to thirty years in prison, with fifteen years of parole ineligibility. On the manslaughter and arson convictions, he was sentenced on each to ten years in prison, with five years of parole ineligibility. All those sentences were run consecutively. Defendant filed a direct appeal challenging his convictions and sentence as excessive. We rejected those arguments and affirmed the convictions and A-1460-22 2 sentence. State v. Scabone, No. A-3498-93 (App. Div. Nov. 14, 1995). The Supreme Court denied certification. State v. Scabone, 143 N.J. 330 (1996). Thereafter, defendant filed two petitions for post-conviction relief (PCR). Both petitions were denied, and we affirmed those denials. State v. Scabone, No. A-1491-96 (App. Div. May 7, 1998); State v. Scabone, No. A-2539-11 (App. Div. Feb. 27, 2014). The Supreme Court denied certification on defendant's appeal from the denial of his first petition for PCR. State v. Scabone, 156 N.J. 410 (1998). Defendant did not file for certification to appeal the denial of his second petition for PCR. Defendant also sought habeas corpus relief in the federal courts. That request was denied at all levels of review. See Scabone v. Hendricks, 535 U.S. 1085 (2002). Meanwhile, defendant filed four motions, alleging that his sentence was illegal. The first two motions were …</p><br>
<a href="/opinion/9488736/state-of-new-jersey-v-alberto-scabone/">Original document</a>
Allen v. District of Columbia2024-03-28T00:00:00-07:00District of Columbia Court of Appealshttps://www.courtlistener.com/opinion/9488724/allen-v-district-of-columbia/
<p>Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press. DISTRICT OF COLUMBIA COURT OF APPEALS No. 22-CV-0567 CLAUDIA ALLEN, APPELLANT, V. DISTRICT OF COLUMBIA, APPELLEE. Appeal from the Superior Court of the District of Columbia (2020-CA-3374-B) (Hon. Shana Frost Matini, Trial Judge) (Argued October 3, 2023 Decided March 28, 2024) Matthew E. Stubbs, with whom Christopher T. Nace was on the brief, for appellant. Jeremy R. Girton, Assistant Attorney General, with whom Brian L. Schwalb, Attorney General, Caroline S. Van Zile, Solicitor General, Ashwin P. Phatak, Principal Deputy Solicitor General, and Carl J. Schifferle, Deputy Solicitor General, were on the brief, for appellee. Before BECKWITH, MCLEESE, and DEAHL, Associate Judges. 2 DEAHL, Associate Judge: Claudia Allen sued the District of Columbia 1 in relation to a late payment penalty that was levied against her when she failed to timely pay a traffic ticket. It is undisputed that Allen in fact timely sent her payment in using the pre-addressed envelope provided by the District, but the post office failed to deliver it and it was ultimately returned to Allen as undeliverable mail. That failed delivery, Allen asserts, was a result of the District’s use of red (rather than black) ink on pre-addressed payment return envelopes, which in her telling is hard for the United States Postal Service’s machines to read and thereby increases failed delivery rates. Allen sued the District for negligence on her own behalf and also sought to certify a class of similarly situated people who were assessed late payment penalties during the period when the District used red ink on its payment return envelopes. The trial court granted summary judgment for the District on Allen’s individual negligence claim, concluding that the evidence would not permit a reasonable jury to conclude that the use of red ink is what caused her payment to go undelivered. 1 Allen has at times styled her suit as against the District’s Department of Motor Vehicles, but both her operative complaint and her notice of appeal name the District of Columbia as her opposing party. The District has asked that we caption this case to reflect that, Allen has not raised any objection, and so the caption now reflects that the District of Columbia is the opposing party in this case. 3 The court also rejected her request for class certification on the basis that she did not satisfy the Rule 23 requirements for certifying a class action. Allen now appeals. We agree with the trial court that Allen adduced no evidence from which a reasonable jury could conclude that the use of red ink caused her payment to go undelivered, so we affirm the grant of summary judgment. And because Allen has no viable claim of her own, she cannot represent any class of claimants, so we likewise affirm …</p><br>
<a href="/opinion/9488724/allen-v-district-of-columbia/">Original document</a>
F&E Realty by Raceway Petroleum v. Township of Green Brook2024-03-28T00:00:00-07:00New Jersey Tax Courthttps://www.courtlistener.com/opinion/9488743/fe-realty-by-raceway-petroleum-v-township-of-green-brook/
<p>NOT FOR PUBLICATION WITHOUT APPROVAL OF THE TAX COURT COMMITTEE ON OPINIONS ------------------------------------------------------x F & E REALTY BY RACEWAY : PETROLEUM, : TAX COURT OF NEW JERSEY Plaintiff, : DOCKET NO: 011927-2020 : 011412-2021 v. : : TOWNSHIP OF GREEN BROOK, : : Defendant. : : ------------------------------------------------------x Decided: March 27, 2024. John W. Zipp and Paul Tannenbaum for plaintiff (Zipp & Tannenbaum, LLC). Kevin A. McDonald for defendant (Di Francesco, Bateman, Kunzman, Davis, Lehrer & Flaum, PC). CIMINO, J.T.C. I. INTRODUCTION The primary function of a municipal assessor is to determine the assessed value of every parcel of real property in a municipality. For both 2020 and 2021, the Green Brook assessor determined the value of taxpayer’s property using computer assisted mass appraisal and certified the value as correct to the county board of taxation. After the taxpayer filed an appeal to reduce the assessment, the municipality filed a counterclaim to raise the assessment. The assessor prepared -1- individual appraisals for the properties under appeal for 2020 and 2021 opining the prior assessments set by her are too low. In a prior appeal by the same taxpayer for 2019, the assessor did the same thing. The taxpayer now moves to bar the assessor from testifying contrary to the assessments which she initially certified to the county board. It is premature to bar the assessor’s testimony. The testimony may or may not be problematic considering the inherent independence of the assessor as an agent of the Legislature. While an assessor assesses property, the court assesses credibility. The court must hear the assessor’s testimony to assess credibility. II. BACKGROUND The tax maps of the defendant municipality, Township of Green Brook, designate the property of plaintiff taxpayer, F & E Realty, as Lot 19, Block 19.02. The assessor assessed the property at $825,000 for 2020 and $935,000 for 2021. Green Brook is a participant in the Somerset County annual reassessment demonstration program. The program uses computer aided mass appraisal to set property assessments at 100% of true value each year. See N.J.S.A. 54:1-104(c)(1). Unlike the annual reassessment demonstration program, the traditional assessment method is to set the assessments every so many years, but not annually. During the intervening years, applying an equalization ratio to the assessed value -2- allows for comparison to true value.1 N.J.S.A. 54:3-17, 1-35.1. The equalization ratio is determined by an annual sales study of properties sold in the municipality. N.J.S.A. 54:1-35.3; Township of Jefferson v. Dir., Div. of Tax’n, 26 N.J. Tax 1, 5 n.5 (Tax 2011) (citing Memorandum from the Dep’t of the Treas., Div. of Tax’n, Local Prop. Tax Bureau, to The Sec’y of Each Cnty. Bd. of Tax’n, All Mun. Assessors, and All Mun. Clerks (July 30, 1970)). For consistency, the formulas used for the sales study are uniform statewide. Ibid. Despite certifying to the county board that the assessments of the property for 2021 and 2022 are correct, the assessor now claims the assessments are incorrect and should increase to $950,000 based upon an eighty-page …</p><br>
<a href="/opinion/9488743/fe-realty-by-raceway-petroleum-v-township-of-green-brook/">Original document</a>